Crane v. Miller

Appellate Terms of the Supreme Court of New York

Crane v. Miller

108 N.Y.S. 1015

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1908

StatusPublished

This text of 108 N.Y.S. 1015 (Crane v. Miller) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crane v. Miller, 108 N.Y.S. 1015 (N.Y. Ct. App. 1908).

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Opinion

BISCHOEF, J.

The theory of the plaintiff’s case is that the plank which fell upon him was caused to be disturbed from its position by the defendants’ employés, who were engaged in moving a temporary bridge, in the course of building construction at the place of the plaintiff’s employment. If the fall of the plank were traced to the particular persons who were moving this bridge, a prima facie case, sufficient to call upon the defendants to give proof in explanation, would have been presented (Reilly v. Atlas Co., 83 Hun, 196, 31 N. Y. Supp. 618; Id., 3 App. Div. 363, 38 N. Y. Supp. 485); but the evidence shows beyond dispute that the defendants’ servants were not exclusively in occupation of this place, that the plank fell, not because of the lowering of the bridge, which had not as yet come near it, but because some person kicked it, and that the impulse which caused the fall was as readily traceable to the plaintiff’s coemployés, or to other persons, as to the defendants’ servants. With the proof in this condition, the judgment for the plaintiff cannot be upheld. Wolf v. Am. Tract Society, 164 N. Y. 30, 58 N. E. 31, 51 L. R. A. 241.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.

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BISCHOEF, J.

The theory of the plaintiff’s case is that the plank which fell upon him was caused to be disturbed from its position by the defendants’ employés, who were engaged in moving a temporary bridge, in the course of building construction at the place of the plaintiff’s employment. If the fall of the plank were traced to the particular persons who were moving this bridge, a prima facie case, sufficient to call upon the defendants to give proof in explanation, would have been presented (Reilly v. Atlas Co., 83 Hun, 196, 31 N. Y. Supp. 618; Id., 3 App. Div. 363, 38 N. Y. Supp. 485); but the evidence shows beyond dispute that the defendants’ servants were not exclusively in occupation of this place, that the plank fell, not because of the lowering of the bridge, which had not as yet come near it, but because some person kicked it, and that the impulse which caused the fall was as readily traceable to the plaintiff’s coemployés, or to other persons, as to the defendants’ servants. With the proof in this condition, the judgment for the plaintiff cannot be upheld. Wolf v. Am. Tract Society, 164 N. Y. 30, 58 N. E. 31, 51 L. R. A. 241.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.

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Bluebook (online)

108 N.Y.S. 1015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crane-v-miller-nyappterm-1908.

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